About two weeks ago, Fort Wayne Police Chief Rusty York asked the Board of Public Safety to change the wording in the department’s policy concerning excessive force.
Gone now are those exact words – excessive force – replaced with the term unreasonable force, a change consistent with how the matter is discussed in courts, where these kinds of situations are often judged.
The new rule also spells out what happens if an officer goes too far and causes serious injury. That puts the matter in the hands of the board of public safety for any suspension longer than five days.
In part, the change grew out of the behavior of officer James Arnold. The six-year department veteran was found by the department to have slugged a mentally ill man multiple times in the head, breaking his jaw.
Arnold did not contest his 30-day unpaid suspension. He was also ordered to undergo remedial training at the police academy before returning to work.
In the past five years, York said there had been only four cases in which it was determined that unreasonable force was used by a Fort Wayne police officer, until Arnold’s actions in January.
But with cellphone cameras and small video cameras everywhere, allowing confrontations to be more easily recorded, complaints about the use of force are on the rise, York told the board.
The January incident involving Arnold was not the first time his use of force has been questioned. A fatal police-action shooting in 2007 involving Arnold cost the department $335,000 when the case was settled with the dead man’s family.
An objective standard
While the wording has changed, the city’s training on the use of force – what is appropriate and when – has not. The standard remains that any force used must be objectively reasonable.
Just before Christmas in 2007, Arnold had been on the job for less than four months. Having served as a Marine with combat tours in Afghanistan and Iraq, Arnold emptied his pistol into a car driven by 24-year-old illegal immigrant Jose Baudilio Lemus-Rodriguez, who was driving drunk on a south-side street.
According to court documents, Lemus-Rodriguez started backing his car away from an officer who was trying to reach into the vehicle. Arnold believed the other officer was in danger and fired 18 shots into the car, killing Lemus-Rodriguez, who was unarmed.
After a lawsuit was filed, the city settled with Lemus-Rodriguez’s family, paying $335,000 to his estate, which went to his young daughter in Guatemala.
Allen County Prosecutor Karen Richards declined to pursue charges in the case, and a private consultant hired by the city found Arnold’s actions to have been objectively reasonable.
That term comes out of court cases examining uses-of-force claims, said Fran Watson, a professor of clinical law at the McKinney School of Law at Indiana University-Indianapolis.
What it means is that the officer’s actions are the same as what another officer would do in a similar situation – objectively.
Which is, of course, hard to determine on something that is so obviously subjective – because no two situations in police work, or life for that matter, are ever truly the same.
It’s a mistake to try to make sense out of these cases, Watson said, echoing what she says she tells her students: Law is a human endeavor.
But the law does try, and it has decided that that is the standard, in the language of the U.S. Constitution’s Fourth Amendment’s protections against unreasonable searches and seizures.
Watson comes to the issue as a career-long defense attorney – handling defendants in criminal cases and working as an attorney for the city of Indianapolis representing police officers in lawsuits. She is also a member and officer on the board of the Indiana Civil Liberties Union.
The concept of excessive force is actually a sub-category of unreasonable force, Watson said.
All police intrusion is force, no matter how minor, Watson said; the questions are when can the government use force against you, and how much, she said.
In Fort Wayne, the job of teaching use-of-force protocols falls to Deputy Chief Steve Reed, who runs the department’s training academy and teaches defensive tactics.
The use-of-force continuum is a teaching tool at departments around the country. At one end of the spectrum is the officer’s mere presence, representing the least serious type of force. At the other end is force that causes death.
Between those two extremes are many other examples – such as soft, empty-hand techniques and the Taser.
We use the continuum to train officers, Reed said. The continuum itself, as designed by our policy, is meant to be fluid.
The continuum is not a checklist for officers to run through in every encounter they have. They are not required to think that since they tried a joint lock and it failed, they must necessarily move to the next step in the process.
You may start at a certain place and then have to jump to another level, he said. In a normal situation, a lot of times it jumps from officer presence to deadly force. You’re not going to go through each level of resistance.
And those who train police officers train them to see that situations must be evaluated individually.
Reed described himself as a big guy, trained in several martial disciplines such as boxing. If an officer were to see him and know his history, the officer’s actions would be different than if the same behavior appeared in a different person, he said. A big guy trained in martial arts moving toward an officer should cause greater concern than an elderly woman standing from her chair.
The use of force has to be adjusted, he said. We want to train them and give them the ability to be confident in exercising good judgment when using force.
In the federal lawsuit stemming from the July 2005 shooting of Rudy Escobedo, who was killed by police when they entered his apartment after a lengthy standoff, U.S. District Judge Theresa Springmann first ruled the FWPD’s use of tear gas was unreasonable.
Escobedo, 28, had ingested a large amount of cocaine and armed himself with a semiautomatic pistol. Delusional and expressing fears that police were already inside his apartment, Escobedo called 911 about 4:30 a.m.
He told the dispatcher he was going to shoot himself. Officers responded, including the police department’s Crisis Response Team and Emergency Services Team, or SWAT team, and they set up a perimeter around the Westberry Apartments building at Fulton and Berry streets, and police began negotiating with Escobedo.
About four hours after he first made contact with police, Escobedo was dead, shot by officers who found him holed up inside his closet and pointing the handgun at police.
But after Springmann heard days of testimony about the threat police believed Escobedo posed to the area around his apartment; how police are trained to handle such situations; the way tear gas is used; and the danger Escobedo posed to police when they entered his apartment; the judge changed her mind.
She ruled that the command staff’s decision to deploy flash-bang grenades and large amounts of tear gas did not constitute excessive force.
In her ruling, Springmann found that the officers and the command staff were protected from liability in Escobedo’s death and had not violated his constitutional rights.
Whatever it may be, objectively reasonable is not perfect 20/20 hindsight, Watson said.
The courts can’t force these police departments to make these decisions in hindsight or we’re all dead, she said. You have to follow your protocols. If it’s time to get your gun out and shoot under your protocols, then you should get your gun out and shoot!